Citation Nr: 1414150	
Decision Date: 04/01/14    Archive Date: 04/11/14

DOCKET NO.  08-10 767	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Whether new and material evidence has been received to reopen a claim for service connection for the cause of the Veteran's death.  


ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran had active service in the Philippine Guerrilla and Combination Service from March 1945 to September 1945, and in the Special Philippine Scouts from April 1946 to January 1949.  The appellant is the Veteran's widow.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines.  The rating decision reopened the claim and denied it on the merits.  

The Board is aware that an August 2006 rating decision denied service connection for the cause of the Veteran's death on the merits.  A September 2006 letter provided the appellant notice of the denial.  In June 2007, the appellant submitted an application to "reopen" the claim.  She did not submit any new and material evidence at that time, or within the one-year period from the September 2006 notice letter.  Accordingly, as neither a notice of disagreement nor new and material evidence was received within one year of the notice of the August 2006 decision, the August 2006 rating decision is final.  See Voracek v. Nicholson, 421 F.3d 1299, 1305 (Fed.Cir.2005)  

Regardless of the August 2006 rating decision that reopened the appellant's claim, the Board must adjudicate the new and material issue to determine the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo.  See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

During the pendency of the appeal, the appellant has asserted that service connection for the cause of the Veteran's death is warranted due to aggravation of a pre-existing condition by active duty, and/or exposure to ionizing radiation during active duty.  Reliance upon a new etiological theory (aggravation or exposure to ionizing radiation) is insufficient to transform a claim that has been previously denied into a separate and distinct, or new, claim.  See Ashford v. Brown, 10 Vet. App. 120 (1997); but see Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (where a prior claim for service connection has been denied, and a current claim contains a different diagnosis (even one producing the same symptoms in the same anatomic system), a new decision on the merits is required).  In the present case, the appellant is still required to present new and material evidence in support of her claim. 

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  An August 2006 rating decision denied service connection for the cause of the Veteran's death; the appellant did not submit a notice of disagreement for that decision, and it became final.  

2.  Evidence added to the record since the August 2006 rating decision does not relate to an unestablished fact necessary to substantiate the appellant's claim for service connection for the cause of the Veteran's death, and does not raise a reasonable possibility of substantiating that claim.


CONCLUSIONS OF LAW

1.  The August 2006 rating decision that denied service connection for the cause of the Veteran's death is final.  38 U.S.C.A. § 7105 (West 2002).

2.  Evidence received since the August 2006 rating decision is not new and material, and the claim for service connection for the cause of the Veteran's death is not reopened.  38 U.S.C.A. §§ 5107, 5108 (West 2002); 38 C.F.R. § 3.156 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen.  With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.

In the context of a claim for DIC benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected.  Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007).  While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice.

An October 2007 letter provided notice, including Kent notice.  A June 2009 letter provided Hupp notice.  Thereafter, the claim was readjudicated in May 2013 and December 2013 supplemental statements of the case.  Accordingly, the duty to notify has been fulfilled.  Mayfield, 444 F.3d at 1333.

With regard to the duty to assist, the claim's file contains the Veteran's service personnel records, a service treatment record consisting of the report of an August 1945 physical examination, post-service private medical records, various non-medical documents and the appellant's own statements in support of her claim.  Correspondence from the National Personnel Records Center (NPRC) received in June 1996 indicates that the Veteran's record was fire-related and no medical records were at that facility.  In February 2013, VA requested that the appellant complete and submit an NA Form 13055 if she was aware of any treatment the Veteran received during active duty.  No response has been received.  The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record.  

VA is not obligated to provide a medical examination if new and material evidence has not been submitted to reopen a final claim.  38 U.S.C.A. § 5103A(f).  

Accordingly, the Board finds that VA's duty to assist has been met.  38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008).  

Legal Analysis

With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).

If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim.  38 U.S.C.A. § 5108 (West 2002).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).

VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  Kutscherousky v. West, 12 Vet. App. 369, 371 (1999).

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (finding that the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). 

The August 2006 rating decision denied service connection for the cause of the Veteran's death.  The rating decision noted that there was no evidence that the conditions on the Veteran's certificate of death were incurred while he was in service, or that he incurred cancer within the one-year presumptive period.  The Veteran was not service-connected for any disability while alive.

Evidence of record at this time included the Veteran's August 1945 physical examination report, service personnel records and post-service medical records dated from 1974 to 1976 and 2004.  

The record also included the Veteran's certificate of death, which shows that the immediate cause of the Veteran's death was cardiorespiratory arrest.  Pneumonia, chronic obstructive pulmonary disease and asthma led to the cardiorespiratory arrest with asthma being the underlying cause.  Gastric adenocarcinoma was identified as a significant condition contributing to but not resulting in the underlying cause of death.  

Evidence received since the August 2006 rating decision includes various statements from the appellant; various non-medical documents such as a marriage contract and birth certificates; a copy of the Veteran's passport and United States Certificate of Naturalization; list of the Veteran's periods of absences from the United States; the Veteran's burial records; and duplicate and non-duplicative service personnel records.  None of this additional evidence links the cause of the Veteran's death to his active duty, to include exposure to any ionizing radiation, or shows that the cause of the Veteran's death was a preexisting condition that was aggravated by active duty.  

The foregoing records simply do not relate to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death.  They do not raise a reasonable possibility of substantiating that claim.  See Shade, supra, at p. 17 (explaining that the language of 38 C.F.R. § 3.156(a) "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering other evidence of record, raises a reasonable possibility of substantiating the claim").  Thus, the additional records are not material within the meaning of 38 C.F.R. § 3.156(a).

The appellant has offered additional written contentions in support of her claim.  The Board finds that these assertions are redundant of her prior contentions that were already considered and rejected by the August 2006 rating decision.  See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992).  Thus, the appellant's assertions do not raise a reasonable possibility of substantiating the claim, and are not material within the meaning of 38 C.F.R. § 3.156(a).

In sum, the evidence received raises no reasonable possibility of substantiating the claim for service connection for the cause of the Veteran's death.  Thus, it is not material within the meaning of 38 C.F.R. § 3.156(a) and the claim is not reopened.




(CONTINUED ON NEXT PAGE)


ORDER

New and material evidence not having been received, the application to reopen the claim for service connection for the cause of the Veteran's death is denied.  



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs